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Supreme Court okays third-party retaliation claims

Eric Thompson, a former employee of North American Stainless, LP ("NAS"), alleged that he was fired because his then-fiance (now wife) Miriam Regalado, also an employee of NAS, filed a charge of discrimination with the EEOC. On January 24, 2011 the Supreme Court of the United States unanimously held that Thompson's termination constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964.

Background

In early 2003, Regalado filed a complaint with the EEOC alleging sex discrimination by her employer, NAS. Three weeks after NAS learned about her EEOC charge, it fired Regaldo's fiance, Eric Thompson, who also worked for NAS. Thompson subsequently filed his own charge with the EEOC, alleging that NAS had unlawfully terminated him in order to retaliate against Regalado for filing her charge with the EEOC.

After attempts at conciliation failed, Thompson filed a complaint in the Eastern District of Kentucky, alleging that NAS had violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 when it fired him. The District Court granted summary judgment to NAS, holding that Title VII did not permit third-party retaliation claims. On appeal, a three-judge panel of the United States Sixth Circuit Court of Appeals reversed the decision of the District Court. The Sixth Circuit then granted a rehearing en banc, and affirmed the original decision of the District Court, holding that Title VII did "not create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity" under Title VII. The case was appealed to the Supreme Court of the United States, which granted certiorari.

The Supreme Court's Opinion

The Supreme Court unanimously reversed the en banc decision of the Sixth Circuit. In its opinion, the Court addressed two questions: first, whether Thompson's firing constituted unlawful retaliation under Title VII; and second, if his firing was unlawful, whether Thompson had the right to sue NAS for its alleged violation of Title VII.

With respect to the first question, the Court stated that it had "little difficulty" determining that NAS's firing of Thompson constituted unlawful retaliation under Title VII. The Court relied on its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, in which it held that Title VII's anti-retaliation provision was worded broadly to prohibit any employer action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

Applying the Burlington retaliation standard, the Court in Thompson found it "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fianc would be fired." Although NAS argued that such a holding opened employers up to a slippery slope of retaliation claims by less-closely-related third parties, the Court refused to define a "fixed class of relationships for which third-party reprisals are unlawful." The Court only noted that, generally speaking, "firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so."

With respect to the second question, the Supreme Court held that Title VII did provide Thompson a cause of action against NAS under Title VII for unlawful retaliation. The Court determined that an employee constitutes a "person aggrieved," and therefore is eligible to bring a Title VII complaint, when that person "falls within the zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." In this case, because Title VII was intended to protect employees from their employers' unlawful actions, Thompson was a person aggrieved under the statute. The Court also noted that Thompson was not an "accidental victim" of retaliation, but rather that "injuring him was the employer's intended means of harming Regalado." The Court held that under such circumstances, Thompson was "well within the zone of interests sought to be protected by Title VII."

What the Thompson Case Means for Employers

Employers should take note of the Thompson case because it expands the circumstances under which employees may be protected under Title VII's anti-retaliation provisions. Put another way, Thompson effectively creates a new class of employees to whom the anti-retaliation provisions of Title VII may apply. It is not clear, however, just how large that new class of employees may be. Future court cases (or legislation) may better define the parameters of this new class and the circumstances under which Thompson applies. In the meantime, employers can protect themselves by ensuring that they are able to articulate legitimate, non-retaliatory reasons for any adverse action taken against an employee, and by consulting with counsel before taking any employment action that could be construed as retaliatory.

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